New discrimination law could cripple advice businesses

Employment lawyers have warned that drastic legislative changes to the country’s discrimination laws will have a major impact on advisers and other small business owners.

Joydeep Hor, managing principal at People & Culture Strategies employment law firm, says employers can expect to see a rise in discrimination claims as the new legislation comes into effect.

“I would expect that there will be a significant increase in the number of discrimination, harassment and bullying claims that will be brought, particularly having regard to the shifting burden of proof and also the impact on the recoverability of costs in litigation.”

The new legislation effectively shifts the burden of proof to the employer, which Hor says will add to what he describes as a claims and litigation “minefield.”

“So long as an employee can prove that there was some level of consequence for them and that they fall within one of the grounds protected by discrimination legislation, the onus will be very much on the employer to disprove that any inappropriate conduct was occurring because of the attribute that that person had.”

Hor says that if an employee can prove that they were pregnant, for example, and can also point to the fact that their employment was terminated, the employer will have to prove that the reason for termination was something other than the pregnancy.

“This is a significant change from the current legislation, where the employee would have to actively prove that there was a connection between the attribute and the unlawful conduct.”

The turnaround in this area of the law means it will be harder for employers to justify potentially discriminatory actions. Hor says that while employers will still be required to deal with claims they feel are unjustified by working with the Australian Human Rights Commission, the best way to ensure your business integrity – and avoid paying expensive legal fees - is through prevention.

“The clear message in this for employers is the need for them to ramp-up their compliance mechanisms. Have regular and proper training, have the right policies and procedures, make sure that your leaders are maintaining good records, and ensure that there are two people attending meetings that could potentially become controversial.”

The significance of these changes can’t be overstated, he says.

“What we will see in an area of law that has already been very active in the last few years, is a spike in the number of cases and I would expect that there would be a lot of initial teething problems in identifying what is the necessary burden of proof.”